Can I Will away my frozen eggs, sperms or embryos?
You can't just "Will away" your reproductive cells and embryos as if they were your traditional assets. Even if you express your wishes in your will, they may not be followed, since the handling and use of these materials are subject to legal, ethical, and medical guidelines.
When it comes to handling stored oocytes (eggs), sperms, or embryos in situations like death, it's important to have a plan in place beforehand. This usually involves giving clear consent to the storage provider, rather than relying on a Will. In the case of embryos, which are fertilised oocytes, mutual consent will also be required from all parties involved.
Typically, the storage provider will ask you and your spouse to sign a consent form or agreement outlining what should happen to any remaining eggs, sperms, or embryos in different circumstances, such as divorce or the passing of one or both partners. Keep in mind that your Will may not override or revoke such consent or agreement.
An example of such consent which describes some of the scenarios and the possible options can be found in page 2 & 4 of the following form from Singapore's KK Women's and Children's Hospital
Regulations on Assisted Reproductive Service in Singapore
Your fertility clinic cannot proceed to store your reproductive cells or embryos if you have not given them prior instructions on the storage period and decisions whether to donate or dispose in case of specific situations, such as death or divorce. The handling and use of your reproductive cells and embryos are regulated.
In Singapore, the assisted reproduction service provider, such as a fertility clinic, is regulated and required to obtain a license. For more information, you can visit this link or the Healthcare Services (Assisted Reproduction Service) Regulations 2023.
The provider is required to collect your instructions regarding various important events before they are permitted to store your sperms, eggs, or embryos. This include getting your instructions on whether to dispose or donate your reproductive cells or embryos on all of the following events:
- You are uncontactable at the expiry of the storage period or upon failure of any payment; or
- You become incapable of giving consent (e.g. lose mental capacity); or
- In the case of storing embryo, you and your husband cease to be married, whether by death or divorce.
The regulation also state that the donor reproductive cells or embryos may only be used in very specific cases. For example, you may only use donor eggs if you are unable to produce viable eggs, have failed attempts at collecting your own eggs, or if a doctor assesses that your eggs are unlikely to result in a healthy pregnancy. Similarly, donor sperm can only be used if your husband cannot provide viable sperm or if his sperm is unlikely to produce a healthy foetus.
Donor sperm is accepted only from men aged 21 to 40, and donor eggs are only accepted from women aged 21 to 37. Additionally, embryos created from close family members, like siblings or parent-child combinations, are strictly prohibited to avoid ethical and genetic issues.
Parenthood - Child Born Out of Assisted Reproduction
The distribution rules in the Singapore's Intestate Succession Act only consider children who are legitimate. Illegitimate children are excluded except for the mother of an illegitimate child who dies without any surviving legitimate children.
To distribute your estate differently, it is important to make a Will. This is also especially important for those with blended families.
An important factor to consider in cases involving children born through assisted reproduction technology is the determination of the child's legal parentage and legitimacy.
The Singapore Status of Children (Assisted Reproduction Technology) Act 2013 applies to children born from 1 October 2014. It covers cases where the child is born in Singapore or where either the gestational mother, her husband, de facto partner, the sperm or egg donor, or the person who consented to the fertilisation procedure is domiciled in Singapore at the time of birth. Singapore citizens are presumed to be domiciled in Singapore unless proven otherwise.
Gestational Mother as Mother
The woman carrying the child (gestational mother) is to be treated as the mother from the date of the child's birth, regardless of where the fertilisation procedure took place.
Husband or Partner as Father
If the gestational mother is married, her husband is treated as the father if his sperm was used, or if he consented to using donor sperm, or if he later accepted the child despite knowing the child is not biologically his.
If the gestational mother had instead a de facto partner during conception (a man in a spousal-like relationship with the gestational mother), the partner is recognised as the father upon marriage or upon child's birth (whichever is later), if his sperm was used or he consented to using a donor sperm or otherwise through his course of conduct accepted the child knowing it's not his. Court may also order the de facto partner to be treated as the father.
Mistakes, Negligence, or Fraud
If there was a mistake, negligence, recklessness or fraud such that a wrong sperm, egg or embryos was used, the parenthood of the child is still determined as if no such mistake had occurred. However, another person can apply to court to be treated as the parent provided it is within two years of discovering the issue, subject to the court's discretion.
Legitimacy of the child
The child is legitimate only when the woman who is treated as the mother married the man who is treated as the father from whichever of the following dates occurs last:
(a) the date of the child’s birth;
(b) the date of the marriage;
(c) the date the child is accepted as a child of the marriage by the man who is to be treated as the child’s father.
Imagine Sarah lives with John, but they aren’t married. She uses John’s sperm to conceive and gives birth. John cares for this child as his own, but since they never marry, the child is not considered legitimate. When John passes away, unless he makes a Will, the child doesn't inherit from John under intestacy rules.